This administrative proceeding
was brought in accordance with the ICANN Uniform Domain Name Dispute Resolution
Policy, dated October 24, 1999 ("the Policy") and the ICANN Rules of Uniform
Domain Name Dispute Resolution Policy, dated October 24, 1999 ("the
Rules").

The Complaint was received
on March 27, 2002.

The Response was received
on April 30, 2002.

Mark V. B. Partridge was
appointed Panelist on May 22, 2002.

The Complainant submitted
a Reply to the Response on May 15, 2002. Respondent object to that submission
and sought leave to file a Surreply. Leave to file a Surreply was granted on
June 4, 2002, and the additional submission was received June 11, 2002.
All submissions have been considered in rendering this opinion.

4. Factual Background

Complainant asserts that
it has used the trademarks FORT LEE CHAMBER OF COMMERCE and FORT LEE CHAMBER
in commerce to promote civic activities for over 40 years. The Complainant has
not obtained any registrations for those marks. Other than the allegation by
its attorneys, Complainant has submitted no evidence relating to the length,
extent or nature of its alleged use of the claimed trademarks. The record indicates
that Complainant's official name is GREATER FORT LEE CHAMBER OF COMMERCE.

It appears that Complainant
sponsors or is otherwise affiliated with business directory web site located
at <fortlee.com>. Complainant receives advertising revenue from the site
in exchange for its sponsorship.

Respondent is the Vice
President of Benevanto Publishing, Inc, doing business as Virtual Town Pages
("VTP"). VTP is engaged in the business of creating and operating online advertising
directories for local communities. It operates such directories in the area
of Fort Lee, New Jersey, including "Fort Lee Online" (<fortleeonline.com>),
"Edgewater Online" (<edgewateronline.com>), and "Cliffside Park Online"
<cliffsideparkonline.com>.

Respondent is also the
webmaster for the Borough of Fort Lee and maintains the official web site at
<fortleenj.org>. VTP has created the official web site for the Fort Lee
Film Commission and has been contacted by the Fort Lee Public Library to work
on its web site. VTP also voluntarily maintains web sites for the Edgewater
Business Alliance and the Cliffside Park Chamber of Commerce.

VTP began operating Fort
Lee Online in or around November 1999. Respondent claims that Complainant changed
the format of the <fortlee.com> web site in or around June 2000 to imitate
the format of VTP's site <fortleeonline.com>. Also in June 2000, a representative
of VTP, Karen DeMarco, Respondent's wife, met with Complainant about becoming
a member of Complainant's organization. Respondent learned at that meeting that
Complainant had an arrangement with the operator or <fortlee.com> for
payment to Complainant of some advertiser monies.

Respondent registered the
Domain Names on June 16, 2000.

On June 29, 2002, Respondent
met with Complainant and advised that its involvement with the <fortlee.com>
web site created a conflict of interest with VTP as a prospective member. In
his follow-up message, Respondent stated: "I was . . . very disappointed to
visit the Fortlee.com web site after our meeting, and see that they are now
officially "co-sponsored" by the Fort Lee Chamber of Commerce."

On July 20, 2000, Complainant
wrote Respondent about transfer of the Domain Names. On August 8, 2000, Respondent
wrote Complainant stating:

"With respect to the domain
name issue raised in your letter, I would like to first clarify some confusion.
You used the term "return" of domain names; however, those domain names were
purchased directly by Virtual Town Pages and were never owned by the Greater
Fort Lee Chamber of Commerce, therefore they could not be "returned." We own
many domain names, including those pertaining to a number of surrounding towns,
but are not in the business of selling same. If we were to become a member of
your organization and there was a domain name of our that you were interested
in using, we would be glad to maintain a free web site for the Chamber at the
we address—however, that scenario could only occur of course if the conflict
of interest were no longer present and the Chamber was no longer competing with
use in the sale of Internet directory listings and web site creation, since
we certainly would not allow any of the domain names that we own to be used
to divert visitors to a competing web site."

5. Parties’ Contentions

A. Complainant

Complainant contends that the Domain Names are confusingly similar to marks
in which Complainants have rights; that the Respondents have no right or legitimate
interest in the Domain Names; and that the Domain Names were registered and
used in bad faith.

B. Respondent

Respondent denies that Complainant has trademark rights in the mark FORT LEE
CHAMBER OF COMMERCE or FORT LEE CHAMBER. Respondent also claims that Complainant's
claims should be barred by the doctrines of laches and unclean hands.

6. Discussion and Findings

The arguments presented
by the parties focus on a complicated set of facts relating to the allegation
that Complainant is somehow improperly engaged in commercial activities triggering,
among other things, a violation of the racketeering laws of the United States.
Much of this discussion is well beyond any issue relevant to this proceeding.

Our substantive inquiry
focuses instead on three issues: (1) are the Domain Names confusingly similar
to a trademark in which the Complainant has rights; (2) does Respondent have
a legitimate interest in the Domain Names; and (3) have the Domain Names been
registered and used in bad faith? The Complainant has the burden of proof on
each of these issues.

It is undisputed that the
marks claimed by Complainant have not been registered. Instead, Complainant
relies on common law rights. Under U.S. law, which is applicable to both parties,
Complainant must prove prior use and distinctiveness to establish common law
rights. In this case, the alleged marks FORT LEE CHAMBER OF COMMERCE and FORT
LEE CHAMBER appear to be merely descriptive. Such marks may be protected if
they have acquired distinctiveness or secondary meaning through use. The factors
typically considered include (1) length and manner of use; (2) manner and extent
of advertising and promotion; (3) sales volume; and (4) survey evidence. Home
Mortgage Corp. v. Platinum Financial Group, 149 F.3d 722 (7th
Cir. 1998); Investacorp, Inc. v. Arabian Investment Banking Corp., 931
F 2.d 1519 (11th Cir. 1991).

Here, the Complainant has
failed to present any evidence of secondary meaning, except for the bald allegations
of its complaint. Complainant merely alleges that trademarks have been continuously
used since 1960 in connection with "countless civic activities and services
to the Fort Lee community." Complainant lists various activities, but has included
no exhibits or affidavits to support its claim.

The allegations of the
Complainant are supported by certification that "the information contained in
this Complainant is to the best of the Complainant's knowledge complete and
accurate." Perhaps allegations made on that basis, if undisputed, might be sufficient
to make a prima facie case. However, here those allegations are disputed. Respondent
contends that Complainant's name is GREATER FORT LEE CHAMBER OF COMMERCE and
denies that Complainant has made trademark use.

In support of its denial,
Respondent has produced various materials relating to Complainant. These all
prominently use the name GREATER FORT LEE CHAMBER OF COMMERCE. None display
prominent use of FORT LEE CHAMBER OF COMMERCE or FORT LEE CHAMBER. Respondent's
denial is further supported by materials submitted by Complainant. For example,
Annex 3, the whois record for Complainant's domain name registration for <ftleechamber.com>,
identifies the organization as "Greater Fort Lee Chamber of Commerce." Similarly,
Annex 5 is letter from Complainant's counsel to Respondent stating "This firm
represent the Greater Fort Lee Chamber of Commerce."

Thus, the evidence submitted
does not support Complainant's claim of right in the marks FORT LEE CHAMBER
OF COMMERCE or FORT LEE CHAMBER. However, based on the allegations of Respondent
and the materials submitted with the response, I find that Complainant does
use the name GREATER FORT LEE CHAMBER OF COMMERCE. If the Domain Names were
deemed confusingly similar to that name, Complainant might prevail on the first
element of its claim if the name had acquired secondary meaning. Therefore,
we turn to examine the evidence of rights in GREATER FORT LEE CHAMBER OF COMMERCE.

In this regard, Complainant
has presented no evidence. Indeed, by focusing on a claim of rights in FORT
LEE CHAMBER OF COMMERCE and FORT LEE CHAMBER, Complainant has not even asserted
rights in the mark GREATER FORT LEE CHAMBER OF COMMERCE.

Here, the evidence suggests
that Respondent adopted a name similar to Complainant's name for the purpose
of inducing Complainant to discontinue its support of a competing city directory
site. This highly suspicious motive may constitute bad faith intent in support
of Complainant's claim of rights, but I do not believe it is conclusive of those
rights. Furthermore, based on the total record presented, I find I am unable
to give Complainant the benefit of any doubt, for several reasons:

First, I believe Complainant's
submission is not consistent its certification that the information contained
in the Complainant is "complete and accurate." I believe Complainant has been
disingenuous about its very name, calling itself "Fort Lee Chamber of Commerce"
when in fact its name is "Greater Fort Lee Chamber of Commerce." I am surprised
by this apparent attempt at deception. It seems so unnecessary if Complainant
in fact had made trademark use of its name for 40 years. The deception raises
doubt about Complainant's other claims.

In addition, Complainant's
failure to submit any evidence in support of its claim of trademark rights is
puzzling. The failure in the original complainant might be attributed to the
belief that those rights were undisputed. However, Respondent did sharply dispute
those rights. Nevertheless, Complainant continued in its omission when it submitted
its Reply to the Response. The Reply, which consists of over three pages of
small, single spaced type, addresses many of the points raised by Respondent
(including laches, free speech, genericness and lack of confusion), cites numerous
cases, but still ignores Respondent's basic point that Complainant has failed
to prove any trademark rights in any marks identical or confusingly similar
to the Domain Names.

It is a general proposition
of United States law that the failure of a party to submit evidence in its control
may permit an adverse inference the facts would not be favorable to that party.
See Mondich v. Brown, WIPO Case No. D2000-0004 . That principle seems
applicable here, given that Complainant's failure of proof was called to its
attention in the Response but Complainant did not then submit evidence of its
rights.

In weighing the record,
we have on one hand Respondent's admission that Complainant uses the name GREATER
FORT LEE CHAMBER OF COMMERCE; the appearance of bad faith registration and use;
and Complainant's contested allegation that it has protectable trademark rights.
On the other hand, we have Complainant's apparent deception about its actual
name and its failure to present any evidence of its trademark rights after notice
that its claim of rights was challenged. Even if we accept Complainant assertion
that it has used its name for forty years, we have no evidence on the other
relevant factors for determining secondary meaning. There is no evidence of
the manner in which the name has been used during that period of time, the nature
and extent to which the name has been advertised or promoted, the volume of
services provided under the name or the reaction of the public to the name.

All things considered,
I find that Complainant has failed to prove trademark rights in any mark that
is identical or confusingly similar to the Domain Names. The record otherwise
is inconclusive on those rights. Therefore, it is not necessary to consider
further the other elements of Complainant's claim or Respondent's defenses.
Perhaps Complainant's failure of proof could easily be overcome, and this decision
is not intended to be prejudicial to its ability to prove its rights in another
forum. Nevertheless, that failure of proof is controlling here.

7. Decision

For the reasons stated
above, Complainant's request for transfer of the Domain Names is denied.